Obama makes a play for Scalia

The Obama administration needs to win over at least one conservative Supreme Court justice to save its health care reform law and it’s pulling out the stops to get one.

Administration lawyers have peppered their briefs with citations to opinions written by Anthony Kennedy and Antonin Scalia, they’ve seized on the arguments made by one of Scalia’s most beloved former clerks and their allies in legal circles have talked up how a decision upholding the Affordable Care Act would play into John Roberts’s legacy as chief justice.

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A long shot? Maybe, but it’s the only shot the administration has on a court dominated 5-4 by conservatives.

Here’s the pitch they’re making to Kennedy, Roberts and Scalia and the odds that it will work:

Justice Antonin Scalia

He might seem like one of the least likely candidates to support the constitutionality of the individual mandate. But the Obama administration is directly courting Scalia’s vote.

And because his stamp of approval on the requirement that Americans buy insurance in 2014 would be so surprising, it could also go the furthest in appeasing conservatives who steadfastly oppose the law.

In their defense of the mandate, Obama’s lawyers cite Scalia’s own words in a 2005 case at least five times.

In the Gonzales v. Raich case, Scalia wrote that Congress can regulate a person who wanted to grow legal medicinal marijuana in her home. He said that Congress could do it under the Commerce Clause because the marijuana was “never more than an instant from the interstate market.”

The federal government argues that Congress can regulate the purchase of health insurance in the same way.

Because people can get sick or in an accident, “we are all potentially never more than an instance from the ‘point of consumption’ of health care, yet it is impossible to predict which of us will need it during any period of time,” the government wrote in its Supreme Court brief defending the mandate.

The argument could hurt the 26 states and National Federation of Independent Business, which say Congress isn’t allowed to drag an individual who doesn’t want to buy insurance into the market.

“It’s certainly not harmful [for the government] to say that the intellectual leader of the conservatives agrees with our legal position here,” said Brad Joondeph, a Santa Clara University law professor who follows the health litigation at his ACA Litigation Blog.

Plus, it was 6th Circuit Court of Appeals Judge Jeffrey Sutton — whom in 2009 Scalia called “one of my former clerks whom I am the most proud of,” according to a New York Times report — who was the first Republican-appointed appellate court judge to uphold the law. He also wrote a thorough, 26-page opinion outlining a conservative argument that the mandate is constitutionally sound.